No, You Cannot Prohibit Employees from Protesting or Discussing Their Wages

A reminder to employers concerned about employees’ discussing their wages or acting in concert to petition for higher wages: This is legally protected activity that employers cannot prohibit or restrain. A recent National Labor Relations Board decision involving a Chipotle restaurant chain in Missouri illustrates this point.

Patrick Leeper was a Chipotle employee as well as a member of a labor union. He actively participated in its “Show Me 15” campaign, which seeks to raise the minimum wage in Missouri to $15 per hour. Leeper participated in protests in which union members carried banners and signs and wore t-shirts displaying messages aimed at raising the minimum wage. He also discussed wages with other employees and publicly questioned the employer’s pay policies.

A supervisor interrogated employees about which employees had been discussing wages, told employees they could not talk about their wages, threatened employees with retaliation if they talked about their wages or other terms and conditions of employment, and told employees that all managers were instructed to report any employee discussions about wages and that no employee should be talking about wages. The company eventually fired Leeper, ostensibly for missing a mandatory store meeting.

Under Section 7 of the National Labor Relations Act, employees have the right to engage in concerted activities for their mutual aid or protection. Section 8(a)(1) of the Act makes it unlawful for an employer to interfere with, restrain, or coerce employees in the exercise of their Section 7 rights. The test for evaluating whether an employer’s conduct or statements violate Section 8(a)(1) is whether the statements or conduct have a reasonable tendency to interfere with, restrain, or coerce protected activities.

After a trial, the administrative law judge assigned to the case ruled that the employer violated Section 8(a)(1) by: (1) telling employees that they could not talk about wages; (2) telling employees there would be reprisals for talking about wages; (3) instructing managers not to let employees discuss wages, and to report employee wage discussions to management; and (4) firing Leeper for engaging in concerted activities with other employees.

Employers may rightfully be concerned that employees who join together to protest and discuss their wages and working conditions will sow discord among the workforce, pressure the employer to pay higher wages, and encourage the formation of a labor union if one is not already in place. Yet this type of concerted activity is precisely what the Act was designed to protect. Any attempt by an employer to prohibit or restrain such activity will likely be met by swift and forceful action by the NLRB.